Litigation Commons^™

Derailed By The D.C. Circuit: Getting Network Management Regulation Back On Track, Edward B. Mulligan V

Federal Communications Law Journal

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither fees nor …

Taxing Structured Settlements, Gregg D. Polsky, Brant J. Hellwig

Scholarly Works

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt from the tax the investment yield imbedded within the structured settlement. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. While the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs’ lawyers and non-physically injured tort plaintiffs under general, common-law tax principles. …

Taking Great Cases: Lessons From The "Rosenberg" Case, Brad Snyder

Vanderbilt Law Review

The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Sentenced to death in April 1951 for passing atomic secrets to the Soviets, the Rosenbergs dominated the news and divided the country. Their case came at the height of Cold War America's obsession with Communism. Senator Joe McCarthy and the House Un-American Activities Committee were exposing alleged Communists in the federal government and Hollywood, and the U.S. military was fighting the Korean War to try to stop the spread of Communism abroad. …

The Managerial Judge Goes To Trial, Elizabeth G. Thornbug

University of Richmond Law Review

No abstract provided.

Splitting Scales: Conflicting National And Regional Attempts To Manage Commercial Aquaculture In The Exclusive Economic Zone, Brandee Ketchum

Journal of Food Law & Policy

Like other environmental resources subject to public use, various interest groups struggle over joint management of scarce fisheries resources. Further, differing goals for resource management, such as financial goals versus conservation goals, frequently pit regional groups against one another. In some cases, regional interests may conflict with overall national interests. As goes the water and the air, so go the fish.

Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron

Faculty Scholarship

No abstract provided.

The Pleading Problem, Adam N. Steinman

Faculty Scholarship

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a …

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

Scholarly Works

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

The Fallacy Of Neutrality From Beginning To End: The Battle Between Religious Liberties And Rights Based On Homosexual Conduct, Rena M. Lindevaldsen

Faculty Publications and Presentations

The Bible plainly states that everyone must either "bring every thought into captivity to the obedience of Christ" or continue as "enemies in your mind." Un-Biblical thinking, like un-Bibical actions, leads one on a path away from God. Part II of this Article will briefly introduce a Biblical approach to thinking about contemporary issues and discuss how Christians can unwittingly abandon distinctively Biblical thinking under the guise of neutrality. Part III will present a number of cases that highlight the fallacy of neutrality in the battle between religious liberties and rights based on homosexual conduct. Part IV will contend that …

Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland

The Journal of Appellate Practice and Process

No abstract provided.

Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore

Law Student Publications

The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading regime, …

Water Law In The Western United States, Susan Kelly

Publications

No abstract provided.

The Role Of The Exhaustion And Ripeness Doctrines In Reasonable Accomodation Denial Suits Under The Fair Housing Amendments Act, Matt Hall

Brigham Young University Journal of Public Law

No abstract provided.

The E-Flow Challenge In An Acequia Irrigation System With Storage - Environmental Flow Workshop, Harold Trujillo

Publications

No abstract provided.

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability to …

Status Of New Mexico's Rivers - Existing Data Panel, Stephanie Carman, James Hogan

Publications

No abstract provided.

Some Municipal Programs To Develop And/Or Sustain Living Rivers In New Mexico, Claudia Borchert

Publications

No abstract provided.

Climate Change, Streamflows, And Water Management Implications In The Upper Rio Grande Watershed, Brian H. Hurd

Publications

No abstract provided.

Ineffective Assistance Of Counsel In Plea Bargain Negotiations , Paul J. Sampson

BYU Law Review

No abstract provided.

Failure To Yield: How Wecht Might Ruin The Right To A Fair Trial , Landon Wade Magnusson

BYU Law Review

No abstract provided.

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn

Michigan Law Review

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to the United States. I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

Colorado's Instream Flow Program: History And Current Activities, The Colorado Water Conservation Board

Publications

No abstract provided.

Environmental Flow Issues & Science, Tom Annear

Publications

No abstract provided.

Environmental Flows In Elephant Butte Irrigation District, Gary Esslinger

Publications

No abstract provided.

Environmental Flows Allocation Process In Texas, Kevin Mayes

Publications

No abstract provided.

Riparian Area And Upper Watershed Condition, Mary Steuver

Publications

No abstract provided.

Geomorphic Condition And Shallow Aquifers, Shann Stringer

Publications

No abstract provided.

Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya J. Monestier

Journal Articles

No abstract provided.